State v. Lowther, 356 P.3d 173

Background

Lowther was charged with raping K.S.; the State moved to admit testimony from three other women (A.P., C.H., C.R.) under Utah Rule of Evidence 404(b) to show lack of consent and to invoke the doctrine of chances.
At an evidentiary hearing each woman testified to an encounter with Lowther after drinking: all alleged sexual contact in private residences in the early morning, with varying levels of intoxication and differing details about resistance and penetration.
The trial court admitted the three witnesses under rule 404(b), relying principally on the doctrine of chances and also finding relevance to lack of consent; Lowther reserved appeal when he entered conditional no-contest pleas.
On appeal Lowther argued the trial court failed to scrupulously apply the 404(b) analysis and improperly relied on the doctrine of chances; he also argued the court misapplied rule 403 balancing.
The Court of Appeals held the trial court permissibly relied on the doctrine of chances and that the other-act evidence was prima facie relevant to rebut the consent defense, but it found the court’s rule 403 analysis deficient—particularly as to A.P.’s testimony which differed materially and was highly prejudicial.
The court reversed admission of A.P.’s testimony, remanded for reconsideration of C.H. and C.R. under the correct 404(b)/403 framework, and allowed Lowther the opportunity to withdraw his conditional plea.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether doctrine of chances may justify admission of prior-act evidence under 404(b)	Doctrine of chances makes repeated similar incidents logically relevant to rebut consent and show lack of accident/mistake	Doctrine only applies to rebut fabrication or is inapplicable absent a fabrication defense	Court: Doctrine of chances can support relevance to rebut consent; admission for noncharacter purpose was permissible
Whether the prior-act incidents are sufficiently similar to the charged offense	The incidents share core similarities (young women, intoxication, private residence, sexual contact after sleep)	The incidents differ materially (degree of intoxication, resistance, position, type of penetration); at least some are not similar enough	Court: General similarities suffice for relevance under Verde; trial court did not abuse discretion on similarity overall
Whether the trial court conducted the required Verde/404(b) analysis and proper 403 balancing	State argued trial court considered Verde factors and Shickles; probative value outweighed prejudice	Lowther argued the court relied on Shickles instead of Verde and failed to scrupulously weigh prejudice under rule 403	Court: Trial court relied on doctrine of chances properly but misapplied the rule 403 analysis (used Shickles narrowly); needed Verde framework for balancing
Whether admission of A.P.’s testimony was harmless error	Admission was probative corroboration of lack of consent	Admission was unduly prejudicial because A.P.’s account was materially different, inflammatory, and cumulative	Court: Admission of A.P.’s testimony was reversible error; testimony excluded and case remanded for reconsideration of other witnesses

Key Cases Cited

State v. Verde, 296 P.3d 673 (Utah 2012) (establishes doctrine-of-chances framework and four foundational requirements for similar-act evidence)
State v. Nelson-Waggoner, 6 P.3d 1120 (Utah 2000) (requires trial court to ‘‘scrupulously examine’’ 404(b) evidence and sets noncharacter-purpose inquiry)
State v. Shickles, 760 P.2d 291 (Utah 1988) (enumerates factors used historically for rule 403 balancing)
State v. Labrum, 318 P.3d 1151 (Utah Ct. App. 2014) (discusses Verde displacing Shickles in doctrine-of-chances contexts)
State v. Lomu, 321 P.3d 243 (Utah Ct. App. 2014) (applies Verde factors to determine admissibility and probative value)
State v. Lucero, 328 P.3d 841 (Utah 2014) (emphasizes text of rule 403 and that courts must balance probative value against unfair prejudice)